Supreme Court allots less than five minutes to Yakub Memon’s final appeal of his death sentence

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Yakub Memon’s curative petition, which is one of his last chances against his death sentence, may get less than five minutes for consideration in the Supreme Court on Tuesday. The apex court’s list of curative and review petitions to be heard on July 21 is out. Memon’s petition is listed for 1.40 pm. But it is third in a list of five petitions listed for 1.40 pm, and appears to be the only one involving a matter of life and death.

In the schedule, these five petitions are to follow two curative petitions, listed for 1.30 pm and 1.35 pm respectively, and precede a review petition listed for 1.45 pm. Memon’s petition will be placed before Chief Justice HL Dattu, Justice TS Thakur and Justice Anil R Dave.

A curative petition was a mechanism evolved by the Supreme Court in 2002 (in Rupa Ashok Hurra vs Ashok Hurra 2002 (4) SCC 388), as a means to allow petitioners to seek relief if they feel they have been denied justice by the Supreme Court. It is a vital part of the petitioner’s fight for justice because it comes at the very last stage: it can be filed only after the Supreme Court has dismissed a review petition against its own judgment. There is no time limit given for filing a curative petition.

In its handbook, the Supreme Court of India says the mechanism of a curative petition was necessary in order to “reconsider its judgment/order…to prevent abuse of its process (and) to cure gross miscarriage of justice.”

A curative petition is always placed before the three senior-most judges of the Supreme Court, as well as the bench that dismissed the review petition, if available. The proceedings take place in chambers, and counsels are not present. If the majority of the judges conclude that the matter needs hearing, it is listed before the same bench as far as possible.

On April 9, the Supreme Court rejected Yakub Memon’s review petition against his death sentence for his role in the serial bomb blasts that ripped through Mumbai in March 1993. The same court had earlier rejected his appeal against his conviction by a special court in Mumbai in 2006, and the president had rejected his mercy petition in May 2014. On the charges for which Yakub has been convicted, none of his co-accused has been given the death penalty. For a fuller explanation of the background, see this earlier story on Scroll.in.

Not enough time?

When asked whether considering so many curative petitions in five minutes was normal procedure, Advocate Jaspal Singh, the New Delhi-based lawyer who had argued Memon’s review petition, replied, “I don’t know if this is normal, but at least as far as this case is concerned, I feel it’s too harsh. There are very many legal issues involved here. This is a question of life and death.’’

But Singh also added that he had been given a full hearing while arguing Memon’s review petition, which was dismissed in April by a three-judge bench headed by Justice Anil R Dave.

Yug Chaudhry, a Mumbai-based lawyer who represented 15 death row convicts in Shatrughan Chauhan vs Union of India, the case in which the Supreme Court gave a historic judgment in January 2014 commuting their sentences to life imprisonment, and laying down principles on which a death sentence should be commuted to life, told Scroll.in: “This is nothing short of a farce. In five minutes, it will not even be possible to read or discuss one petition, let alone five. That this is happening in a death sentence matter is very, very sad. Petitioners file curative petitions with the hope that their claims would be fairly evaluated.”

However, senior advocate R Venkataramani of the Supreme Court said this was normal procedure. “A curative petition is circulated in chambers, where only judges are present. Counsel are not heard at this stage. If the judges decide that it merits a public hearing in open court, it is listed in court and heard. There’s nothing unusual in this kind of listing.”

Key judgement

The judgment that evolved the concept of curative petitions as part of the legal process, was passed in 2002 by a bench headed by the then Chief Justice SP Bharucha, and comprising Justices SSM Quadri, SN Variava and Shivaraj V Patil. The judgment was written by Justice Quadri. Eminent lawyers such as Shanti Bhushan, Rajiv Dhawan, KK Venugopal and Ranjit Kumar argued the case.

Laying down reasons for a curative petition, the judgement said, “The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. We are faced with competing principles – ensuring certainty and finality of a
judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principle of natural justice or apprehension of bias…or abuse of the process of the court.’’

“Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty,” it further said. “Almighty alone is the dispenser of absolute justice – a concept which is not disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of.

“In such acase it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment …as there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.”